If you find yourself caring for another person, you may need to consider getting guardianship over that person.

The most common reason that people need a guardianship is because they are caring for a child whose parents are unable to care for them. The second most common reason is caring for an adult who can no longer take care of themselves. A guardianship can also be sought for a person who not capable of caring for his or herself due to a mental or physical disability. In any of these cases, caring for a person without legal authority to make decisions for them can make things logistically and legally complicated. That's where a guardianship comes in.

What does guardianship mean? 

Guardianship means that the guardian has the power to make decisions regarding the "ward." There are three types of guardianship: guardianship over the person, the estate, or the person AND the estate.

A guardianship over the estate is needed when the ward has financial assets that need to be managed. In a guardianship over the estate, the guardian may have to post a "bond" with the court proportionate to the size of the estate they will be managing.

To be a guardian over someone, that person has to be "incapacitated." This could be because they are a minor, or because they have a mental or physical disability that prevents them from caring for themselves.

What does it take to be a guardian? 

To be a guardian in Arkansas, you must be a resident of this state, be at least 18 years of age, be of sound mind, and not be a convicted felon.

How do you get a guardianship? 

You file a petition for a guardianship in the county where the proposed "ward" resides. You also have the notify all of the interested parties. In the case of a minor, his or her parents. In the case of an adult, you have to notify the adult and their closest family members. If the proposed ward is in the custody of some kind of institution, then you have to notify the director of that institution. And if the proposed ward is receiving some kind of state services, like from DHS, then you have to notify DHS as well.

It may be possible to get the parents of the ward, or family members, to sign a waiver saying that they consent to the guardianship. If so, the case will be uncontested.

You will have to have a hearing before a judge, where you explain the petition and why you are asking for guardianship. If the matter is contested, both sides will be able to explain why they do or do not think that a guardianship is warranted and/or that the proposed guardian is the appropriate person to do the job.

What is the end result? 

If the guardianship is granted and an ordered is entered, you will be issued "letters of guardianship" that you can present to people when you have to make decisions for the ward. In the case of children, you would present them to their school, their doctor, or their daycare. In the case of adults, you would use them any situation where you need authority to act on their behalf.

Getting guardianship over a person you're caring for gives you a host of protections when making decisions for that person. If you think you need a guardianship, come in and see Leslie for a consultation. 

What is an annulment? 

An annulment is a declaration by the court that a marriage was not valid. Upon a decree of annulment, the marriage will be treated as if it did not exist.

What are the effects of an annulment? 

If your marriage is annulled, then you will return to the status you had before the marriage. For example, if you owned a home in your name before you were married, you will return to being the sole owner. It will not be considered marital property and your former spouse will not have any rights to it. Likewise, you will not inherit from a spouse if your marriage is annulled. It will be as if you were never married at all. 

However, there is one exception to note. Children born to a marriage that is subsequently annulled will still be considered legitimate in that the former husband will still be assumed to be the father. Even if you are granted the annulment, the court will decide custody, visitation and child support issues separately.

Am I eligible for an annulment?

There are very specific grounds for getting an annulment in Arkansas. An annulment is available when either one of the parties was not capable of consenting to the marriage because:

• One or both of the parties were too young to legally get married;
• One or both of the parties were mentally unable to understand and consent to the marriage;
• One or both the parties were incapable of entering into the marriage state due to physical causes; 
• Consent to marry was obtained through fraud; or
• Consent to marry was obtained through force.

The most common ground for divorce that I see in my practice is consent obtained by fraud for reasons of citizenship. You may be entitled to an annulment if you were defrauded into marrying someone so that they could gain citizenship.

Other examples include where one spouse didn't tell the other that they were impotent; or in the shotgun wedding example, where one of the parties was forced to get married against their will; or, where one or both parties were so intoxicated that they were incapable of consent.

A case I studied in law school involved a couple who were mentally disabled and got married. However, because both knew what marriage was and what getting married meant, and were therefore capable of consenting to it, the marriage was allowed to stand.

What is the difference between divorce and annulment? 

You can only get an annulment if the marriage was never valid. If the marriage was valid, you will need to get a divorce.

An attorney can help you decide if an annulment or a divorce is right for you and your situation. If you think you need an annulment or a divorce, schedule a consultation with Leslie to talk about your options.

When a potential client calls my office with a child custody question, the first thing I need to know is where the child lives and how long the child has lived there. Why does this matter? It matters because there is a law called the UCCJEA and it governs what court can hear a particular custody case.

UCCJEA stands for the Uniform Child Custody Jurisdiction and Enforcement Act. It is the law in every state in the United States (except Massachusetts, where it is still pending in the legislature at the time of this post). Before the UCCJEA was adopted, any state where a child was physically present could make a custody determination. This resulted in parents abducting children and traveling to other states in order to "forum shop" to get a favorable custody determination.

The UCCJEA says that a child's "home state" has priority to decide custody of that child. A home state is defined as "state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding." Temporary absences from the state don't count. And if the child is an infant less than six months old, then the period from birth to present is what counts.

What if the child hasn't lived in one place for six months? In that case, jurisdiction will be proper where the child and at least one parent have a "significant connection" with the state and there is substantial evidence concerning the custody determination available there.

If the child does not fall into either category, then any state with an appropriate connection to the child can make a custody determination.

Now, there are a couple of exceptions. First, if a state court has already made a custody determination regarding a child, then that court will continue to have continuing exclusive jurisdiction over the child so long as one parent continues to live in that state. Second, if there is an emergency that threatens the welfare of the child, then a state can have temporary jurisdiction to take measures to protect the child, but the child's home state will have priority once the emergency has ended.

Let's take up a couple of examples.

Let's say that you and your husband live in Arkansas with your children. You move to Atlanta for a job opportunity and you live there for one year. You and your spouse decide to divorce. Even though you may be able to file for divorce in Georgia, Georgia will not have jurisdiction over the custody determination because Arkansas is the "home state" of the children.

Now let's say that you and wife divorce in Arkansas and she gets primary custody of the kids. She moves with the kids to Chicago. Seven months later, something happens and you want to file for a change of custody. Even though Illinois is the "home state" of the children, the Arkansas court will have continuing exclusive jurisdiction because it made the initial custody determination, and you continue to live here.

As you can see, this gets complicated. But knowing where to file is the first and very important step in filing for custody. If you have a custody case, scheduele a consultation with Leslie and see how she can help.

You could have been at work, minding your own business. Or maybe you were at home in your pajamas. Either way, it's not fun to be served with a lawsuit. But what are you supposed to do now? 

The first thing I will tell you is what NOT to do. Do not wait. Do not stick it in with the rest of your mail and forget about it. Do not wait to go talk to a lawyer.

The second thing is to READ the summons. There is some important information in there. A typical summons will tell you that you have 30 days to respond to the lawsuit or you will risk default. If you default, a judgment can be entered without you. And it is near impossible to undo.

The summons will also include what court the lawsuit is in, who the lawyer on the other side is, and where the clerk's office is to file a response.

Occasionally, a summons will provide for a shorter time period. For example, if you are served with an unlawful detainer lawsuit, you will only have five days to respond, or you will be evicted.

In addition to the summons and the complaint or petition, there may also be a notice for a temporary hearing. In almost all cases, it is imperative that you attend the hearing. Even if your 30 days to respond has not run yet. If the hearing is in the morning, go to the hearing and tell the judge you want a continuance to find a lawyer. 

The third thing is to take the summons to an attorney as soon as possible and learn about your options. Schedule an appointment as soon as you can. Do not want until your answer is due.

If you have been served with a lawsuit, get proactive. Because it's not going away. Read it carefully and then schedule an appointment with an attorney like Leslie who can help you. 

The first thing that comes to mind when I hear "emancipation" is the emancipation proclamation. Of course, that is not what we're talking about here! However, just as slaves were emancipated from their owners, so too can a minor be emancipated from their parents. Here's how.

Emancipation is the process by which a child's "disability" of being minor is removed. This allows the minor to enter into contracts and conduct other business as if they were an adult. They will be able to obtain their own medical care, sign their own school forms, sign rental contracts and leases, receive their own disability checks, sign up for benefits programs, and more.

There are two ways to get emancipated. True emancipation is found in Arkansas Code 9-27-362. It allows a minor who is part of a dependency-neglect, dependency, family in need of services, or delinquency case to file for emancipation. They have to be 17 and they have to serve their parents with notice. After emancipation under this section, the minor's parents are no longer responsible for them. The court looks at the following factors to decide if the minor should be emancipated:

• If the juvenile has the ability to live separate and apart from their parents;
• If they can manage their own financial affairs;
• If they have a legal source of income, like a job;
• If they have a plan for healthcare coverage;
• If they can meet compulsory school attendance laws; and
• If emancipation is in their best interests.

This type of emancipation only occurs as part of a DHS case. And notably, it does not allow you to buy cigarettes or alcohol before you are of legal age!

The other kind of emancipation is called "removal of disabilities." It's also called "contract emancipation." It falls under Arkansas Code 9-26-104 and it allows a judge to authorize someone who is 16 years of age or older to either "transact business in general" or to transact some particular business specifically.

For instance, I had a case where a 16-year-old girl needed to be able to sign her own medical releases because her parents were either unable or unwilling to do so. The judge can either remove all of her disabilities and allow her to contract in general, or he could issue an order allowing her to sign her own medical forms specifically.

Contract emancipation does not have the same factors as emancipation in a DHS case, and it may not have as far-reaching results either.

As you can see, this can get complicated. If you're a minor who is considering emancipation, or a parent who needs representation, then schedule a consultation with Leslie and see what she can do for you. 

Temporary hearings are an important part of the divorce process. Not every divorce requires a temporary hearing. But if there are big issues that need to be decided quickly, like possession of the marital home or custody and visitation of the kids, you have the right to ask for a temporary hearing. The judge will issue a Temporary Order that will be in place during the divorce process.

Each judge handles temporary hearings differently. Some judges only allow the parties to testify. Others only give you a certain amount of time, as little as 20 minutes per side. Still other judges allow you to call whomever you want and take as long as you please.

Sometimes parties will ask for a temporary hearing as soon as they file for divorce, and then serve the other party with the Complaint for Divorce and notice of the hearing. They are allowed to do this, and you must attend the hearing. I do this in cases where my client needs to get before the judge as soon as possible, such as if they have been booted out of the house, or if their spouse is not allowing them to see the kids.

A Temporary Order often has an effect on the final divorce settlement. If you've been served with a notice of temporary hearing, or you need to get your issues before a judge as soon as possible, having an experienced attorney by your side, who knows her judges, is extremely valuable. Schedule a consultation with Leslie today.

Note: If you are reading this and your hearing is in the morning, go to the hearing and tell the judge that you want to hire a lawyer! He or she will likely give you additional time to find one. Call or email us ASAP and tell us your new hearing so that we can get you in quickly.

Sometimes when clients come in to see me, they aren't 100% sure they want a divorce. Maybe something has happened that lessened their faith in their spouse, but they aren't sure they want to throw in the towel completely. So they ask: What about a legal separation?

In Arkansas, legal separation is usually called separate maintenance. The spouse filing for separate maintenance has to prove three primary things: 1) that they are an "innocent" spouse, 2) that they are without sufficient means to provide for themselves or their children, and 3) that the other spouse has sufficient means to provide for them.

What is an "innocent" spouse, you ask? It is a spouse that has not given the other spouse any grounds for divorce. In other words, they have not treated their spouse in such a way that would allow their spouse to file for divorce against them.

The innocent spouse can ask the court to award them "separate maintenance," or alimony, while the parties are separated. They can also ask the court to award them possession of certain property, like the house or the car. The court cannot divide ownership of the property, like they do in a divorce, but it can award simple possession.

During the separation, the innocent spouse has the time and space to think about divorce or reconciliation. During this time, the parties are still married so marital assets continue to accrue, like retirement or paying down the house and cars.

After 18 months of separation has passed, either party will at that time have grounds for divorce based on 18 months of separation and either party can file for divorce at that time.

There are some risks associated with a legal separation, and it is not appropriate in many cases. If you have questions about whether this is the right avenue for you, please contact Leslie and schedule a consultation so that she can assess your particular situation. 

Covenant marriage is legal in three states: Arizona, Arkansas, and Louisiana. In essence, it really does two things: makes it harder to get married, and makes it harder to get divorced.

First, before you can enter into a covenant marriage, you have to submit to authorized marital counseling by a therapist or preacher or similar person, and you have to sign a declaration that says this:

"We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live. We have chosen each other carefully and disclosed to one another everything which could adversely affect the decision to enter into this marriage. We have received authorized counseling on the nature, purposes, and responsibilities of marriage. We have read the Covenant Marriage Act of 2001, and we understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling.

With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by Arkansas law on covenant marriages, and we promise to love, honor, and care for one another as husband and wife for the rest of our lives."

Your counselor also has to sign a declaration that says that he or she has explained to you the nature and purpose of covenant marriage and the grounds for termination of the marriage. These grounds specifically include ONLY the following:

• (1) The other spouse has committed adultery;
• (2) The other spouse has committed a felony or other infamous crime;
• (3) The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses;
• (4) The spouses have been living separate and apart continuously without reconciliation for a period of two years (or two years and six months of a minor child is involved);
• (5) The spouses have been living separate and apart continuously without reconciliation for a period of two years from the date the judgment of judicial separation was signed.

In sum, unless there has been adultery, a felony or abuse, you have to wait for two years of separation. In the meantime, you can get a judicial separation (which may come with some spousal support).

In my experience, people are often wearing rose-colored glasses when they enter into a covenant marriage. They are in love and assume that they always will be. I have seen covenant marriages completely fall apart in a matter of months, only for the couple to have to wait for two years in order to get divorced. My advice is to be very careful when entering into this kind of marriage. And if you're trying to get out of one, get yourself a good lawyer.

If you're reading this post, you probably have a custody or divorce case and you're likely asking 1 of 2 questions:

1: Can I move? 

or

2: Can my ex-spouse move?

In custody cases, moving away from the other parent has a serious impact on the family dynamic. But in the age we live in, it's important for people to have the freedom and flexibility to follow opportunities that may come their way. The court tries to balance these two competing interests. However, I would say that it has given slightly more weight to the second consideration. Allow me to explain.

The law in Arkansas says that a custodial parent's decision to relocate (or move) is presumed to be in the best interests of the child. It will be up to the non-custodial parent (the parent with visitation) to show otherwise. There are 5 considerations that the judge will look at:

• (1) the reason for relocation;

• (2) the educational, health, and leisure opportunities available in the new location;

• (3) the visitation and communication schedule for the noncustodial parent;

• (4) the effect of the move on the child’s extended family relationships; and

• (5) the preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.

If a parent is moving away solely out of spite, or without any job prospects, or is just trying to take the child away from the other parent or from family, then they can probably be prevented from moving. If, however, they are moving to be with family or moving for a good job, the court will likely allow it. The judge will look at the opportunities in the new location, the prospects for visitation, the family the child is moving to or leaving behind, and in some cases, what the child wants. He or she will take all of these things, and more, in consideration in order to determine if the move is in the child's best interest, and what the new visitation schedule should be.

Note: If you have joint custody and are wanting to move, it's a whole new ballgame. Even if you don’t have “joint custody” per se, but have the child close to half the time, then the court uses a different standard and it is more difficult to move.

If you want to relocate, or you would like to prevent your spouse from relocating, a good attorney can make a big difference. Call Leslie today for a consultation to discuss your particular situation.

Grandparent visitation is a thing. If you are a grandparent and your grandkids are being withheld from you, then you may have a legal avenue to enforce your right to see your grandkids and have a relationship with them. However, there are some complicated requirements to get there.

First, in order to petition for grandparent visitation, you have to be a grandparent or great-grandparent to the child, and the relationship of the child's parents has to have been severed by death, divorce or separation.

Second, if the custodial parent is withholding visitation from you, then the law presumes that what they are doing is in the child's best interests. It is up to you, the grandparent, to overcome that presumption.

You have to show two primary things: that you have had a significant relationship with the child, and that visitation with you is in the child's best interests. Here's how you do that: 

1. To show that you have had a significant relationship with the child, you have to show one of these three things: that the child lived with you without the custodial parent for at least six months; that you were the regular caregiver to the child for at least six months; or, that you had regular or frequent contact with the child for at least 12 months.
2. To show that visitation with you is in the child's best interests, you must show that you have the capacity to give the child love, affection and guidance; that the loss of their relationship with you will be harmful to them; and that you are willing to cooperate with the custodial parent if visitation is allowed.

As an example, let's say you are the paternal grandparent of little Grace. Before her dad passed away, you saw Grace all the time. You babysat her, picked her up from preschool, took her to the zoo, and participated in holidays with her. You love her very much. But since her dad passed away, you don't see her much anymore. In fact, her mother has decided that you remind her too much of Grace's dad and she doesn't want you to see Grace at all. You are devastated, and after months of asking to see her and being denied, you finally decide it's time to talk to a lawyer.

Your lawyer (me) helps you file a petition for grandparent visitation. You show that you have a significant relationship with Grace because you had frequent contact with her for over a year. You state that the relationship of her parents was severed by her dad's death. You prove to the judge that you can give Grace love, affection and guidance, and that the loss of her relationship with you will harm her in the long run. But you agree that you will work with her mother if visitation is allowed. In this case, your petition is likely to be granted.

A significant case came down in 2015 called Drinkwitz v. Drinkwitz that illustrates how complicated some of these factors can be. In that case, the grandparents had seen the grandchildren quite a bit before the parents' divorce. After the divorce, they saw them less but the mother still allowed them to see the children. They sued for visitation because they wanted a specific schedule that would guarantee them a minimum about of time with the kids. The court held that grandparent visitation was not appropriate in this situation because the mother was still allowing them to see the grandchildren. You have to have each and every factor required

Grandparent visitation can be even more complicated than your average custody case. If you are a grandparent who would like to enforce your right to visitation, schedule a consultation with Leslie so that she can assess your specific situation. 

What is a Restraining Order? How is that different from an Order of Protection or a No Contact Order? My clients are often confused by these differences, and the differences are important. Allow me to explain.

A Standing Restraining Order is typically automatically issued at the beginning of every domestic relations case, like a divorce. It restrains both parties from harassing each other, from selling or disposing of property, and from removing the children from the jurisdiction of the Court, if there are children involved. This kind of order is not particular to you and does not prevent you from contacting the other party. Here is an example of a Standing Restraining Order from Washington County, Arkansas. 

An Order of Protection is a court order that is issued when there has been an allegation of abuse that threatens the safety and security of the petitioner. The Order prevents communication between the parties and restrains the alleged abuser from going to the home or workplace of the petitioner. The Court will often enter an "Ex Parte" Order of Protection first, which will be temporary and will last until there is a court hearing where everyone can be heard. If the Court finds that the alleged abuser is a continuing threat to the petitioner, then the Court will issue an Order of Protection for a longer period of time, such a one year or even up to ten years.

If you are the victim of domestic abuse and believe that there is a threat to you or your children, here is a step by step guide on how to file for an Order of Protection.

Lastly, a No Contact Order is entered in criminal cases and prevents the alleged perpetrator of a crime from contacting the alleged victim. These are routinely issued in domestic violence, assault and battery cases. There can be no contact whatsoever. This includes text messages, and also includes sending messages through third parties. If either party violates the Order, they can be charged with an independent crime.

If you have a question about a restraining order, contact Leslie so that she can advise you on your rights and responsibilities under that order. Better safe than sorry!

Here are 5 basic things you need to know about getting a divorce in Arkansas: 

#1 - Residency. To file for divorce, either you or your spouse must be a resident of the state of Arkansas and must have been a resident for at least 60 days before filing. That person must also continue to be a resident during the divorce proceedings. 

#2 - Time Frame. A common question from clients is, “How long does it take to get a divorce?” While there is no one answer, it will take at minimum 30 days, but it almost always takes longer. A less complicated divorce typically takes between 45 and 90 days. A complicated divorce can take several months, or even a year or more to be finalized.

#3 - Grounds. To get a divorce in Arkansas, you have to prove that you have grounds for divorce. The most common ground for divorce is general indignities, which refers to your spouse treating you in such a way as to "render married life with them intolerable." The second most common ground is separation for at least 18 months. Other grounds include incarceration and adultery. Arkansas does not have a “no fault” divorce. The grounds for divorce in Arkansas must be specifically proven or agreed to.

#4 - Property. In Arkansas, we have what’s called “equitable” division of marital property. This means that the court will take all factors into consideration when dividing a couple's property, including the age and health of the parties, their income and employability, and the length of the marriage. The court will typically return property owned by each of the parties prior to the marriage, but not always. There is a lot of leeway in dividing property in order for the parties to negotiate. So do not assume that ownership of property will necessarily determine who gets the property in divorce. The court will attempt divide the parties' property as a whole as fairly as possible.

#5 - Child Support & Alimony. As to child support, the non-custodial parent (with whom the child does not live) is routinely ordered to pay child support to the custodial parent (with whom the child does live). The amount of child support is set by the Family Support Guidelines and is determined according to the non-custodial parent’s income. Even if the parent doesn’t work, a certain amount is “imputed” or assumed to be their income. The judge can grant more or less child support based on the child’s needs.

As to alimony, it is up to the court to decide whether alimony should be granted and how much. The primary factors the court considers are the need of one spouse for alimony and the other spouse's ability to pay. But the court will consider others factors too, such as the parties’ income, earning abilities, health, and the length of the marriage. When granted, the trend favors temporary, rather than permanent, alimony in order to help the spouse get back on their feet.

Every marriage is different, and so is every divorce. There are a variety of factors at play that could make a meaningful difference to you, now and in the future. Schedule a consultation with Leslie today and see how she can help you.